Abortion rights supporters and anti-abortion protestors intermingle at the Indiana Statehouse on July 25, 2022. Photo by Whitney Downard of the Indiana Capital Chronicle.

By Leslie Bonilla Muñiz
Indiana Capital Chronicle

INDIANA — The Indiana Court of Appeals on Monday, April 1, unanimously affirmed a challenge to the state’s near-total abortion ban, though it sent a preliminary injunction back to a trial court for a narrower take.

The state — represented by Indiana Attorney General Todd Rokita’s office — is likely to appeal to the Indiana Supreme Court.

Hoosier Jews for Choice and four anonymous women of various faiths allege the ban infringes on their religious beliefs and therefore violates Indiana’s Religious Freedom Restoration Act.

A Marion County Superior Court judge in 2022 granted the plaintiffs’ request for a preliminary injunction — halting enforcement of the ban against them — and last year certified the case as class-action.

The state of Indiana has fought back against the injunction and certification, but the three-judge panel in Thursday’s opinion largely sided with the plaintiffs.

But, it found the preliminary injunction could prevent enforcement in ways that don’t violate RFRA, and therefore is too broad.

The American Civil Liberties Union of Indiana, which filed suit on behalf of the plaintiffs, celebrated.

“For many Hoosiers, the ability to obtain an abortion is necessary based on a sincerely held religious belief,” ACLU of Indiana Legal Director Ken Falk said in a news release. “The burden placed on these individuals by Indiana’s abortion ban is absolute and life-altering.”

“The Religious Freedom Restoration Act is clear that it protects religious freedom for all Hoosiers, and the Court of Appeals’ decision today reflects that clear directive,” he continued.

Plaintiffs point to “well-rooted” Jewish and Islamic beliefs that life begins at birth, not conception.

Indiana’s Office of the Attorney General — which is representing the state — took a measured approach.

“Life is still winning here in Indiana,” an office spokesperson said in a statement. “Today’s ruling on the injunction only affects the four individuals and the single organization named in the lawsuit. But the ACLU is right about one thing – this case is far from over, and Hoosiers know our office will always fight to protect the unborn.”

Indiana Right to Life, among the most prominent anti-abortion organizations in the state, denounced the ruling.

“Today’s court ruling is wrongly decided,” President Mike Fichter said in a news release. “The Indiana Supreme Court has already ruled the state has a compelling interest in protecting unborn life, and Indiana’s new abortion-restriction law is doing that by reducing Indiana abortions to the lowest level in five decades.”

Court Largely Rejects State Arguments

The state of Indiana has contested the trial court’s decisions but the appeals court appeared unsympathetic.

State attorneys argued Hoosier Jews for Choice didn’t have the legal standing required to raise its members’ RFRA challenges to the ban, and that the plaintiffs can’t sue because they’re not currently pregnant or seeking an abortion.

Judge Leanna K. Weissmann, who wrote the majority opinion, reasoned otherwise. Two appellate panels have recognized associational standing and have done so with a test from federal case law.

Weissmann’s panel chose to “follow the lead.” She wrote that Hoosier Jews for Choice meets the test’s requirements because its members would otherwise have standing to themselves sue, the organization’s “reproductive justice” mission is in line with its legal complaint and that neither the claims nor the legal relief request require individual members to participate.

She also wrote that, although the plaintiffs aren’t pregnant, they’ve provided evidence — “severely” decreased sexual intimacy and other changes to their sexual and reproductive patterns — to support a “substantial burdening” in exercising their rights.

The state also asserted that the preliminary injunction and class-action certification were improperly made because the plaintiffs didn’t meet the requirements in case law.

The court, however, agreed with the trial court that the plaintiffs did. In particular, it rejected the state’s argument that abortion isn’t the kind of mandatory ritual that would be considered a religious exercise.

The court highlighted previous decisions allowing religious employers to opt out of federal birth control insurance coverage requirements, letting Sikh military members out of the military’s hair-related grooming policies and other service-members avoid military vaccination mandates.

The state has argued a compelling interest in enforcing the ban — “protecting the unborn” — and that the ban is the last restrictive way to further that interest. But the appeals court agreed with the trial court that the state hadn’t successfully established either.

Finally, the state argued the preliminary injunction is too broad. The court agreed, writing that it could block the state from preventing the plaintiffs from getting abortions outlawed by the ban that “are not directed by Plaintiffs’ sincere religious beliefs.”

The court remanded for a “more narrowly tailored” preliminary injunction. Judge Melissa S. May concurred with Weissmann.

Judge L. Mark Bailey went further, in a separate three-page concurrence.

Bailey highlighted a line from Indiana’s Constitution: “No preference shall be given, by law, to any creed, religious society, or mode of worship.” He posited that lawmakers had done so through the ban.